Ye and Secretary, Department of Social Services (Social services second review)
[2015] AATA 761
•30 September 2015
Ye and Secretary, Department of Social Services (Social services second review) [2015] AATA 761 (30 September 2015)
Division
GENERAL DIVISION
File Number(s)
2015/1377
Re
Wei Qin Ye
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 30 September 2015 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
30 September 2015
BACKGROUND
On the 28 March 2013 Ms Ye lodged a claim for Disability Support Pension (“DSP”). This claim was rejected by Centrelink and subsequently by the Social Security Appeals Tribunal (“SSAT”) SSAT.
In a decision dated 21 January the SSAT found that Ms Ye had a total impairment rating of 5 points under Impairment Table 4 – Spinal Function so that she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP. A subsequent application for review by the Administrative Appeals Tribunal was withdrawn in April 2014.
On 30 May 2014, Ms Ye notified Centrelink of her intention to claim DSP. Following this Ms Ye lodged a new claim for DSP on 11 June 2014.
Ms Ye’s claim was supported by a Centrelink Medical Report provided by her GP, Dr Ang, and was dated 6 June 2014
Dr Ang listed several conditions as conditions as causing significant impact on Ms Ye’s ability to function, namely, “severe low back pain, left shoulder pain severe DJD left 2nd toe, neck pain radiating to left shoulder, hypertension, NIDDM, palpitations, insomnia, depression”.
Ms Ye’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the SSAT on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular she did not satisfy s 94(1)(b) of the Act, in that her impairment rating was not 20 points or more under the Impairment Tables.
The SSAT in a decision dated 13 February 2015 found that Ms Ye had a total impairment rating of 10 points under Impairment Table 4 – Spinal Function.
In these proceedings Ms Ye seeks review of the decision of the SSAT dated 13 February 2015.
At the hearing Ms Ye was self-represented and able to give oral evidence, with the assistance of a Cantonese interpreter.
ISSUES
In order to qualify for DSP, Ms Ye must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 30 May 2014 and 29 August 2014 (the claim period).
Section 94(1) of the Act provides that a person is qualified for disability support pension if :
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies;
(i) the person has a continuing inability to work;
…
The Respondent concedes and the Tribunal accepts that Ms Ye suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
The “conditions” as listed by Dr Ang in the Centrelink medical report appear to be a mixture of medical conditions and symptoms.
For present purposes I am satisfied that the relevant conditions for consideration by the Tribunal include a spine condition (cervical and lumbosacral), a mental health condition (depression), upper limb condition (left shoulder), lower limb condition (left foot toe deformity), non-insulin dependent diabetes mellitus and hypertension.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)),
·fully treated (paragraph 6(4)(b)),
·fully stabilised (paragraph 6(4)(c)), and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Impairment Determination, which is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition”, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.
The Respondent submits that during the claim period Ms Ye had a total impairment rating of 10 points under the Impairment Tables.
Therefore, the Tribunal must decide whether during the claim period Ms Ye had a rating of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.
I note at this point that at the hearing the Respondent conceded that Ms Ye had actively participated in a programme of support for more than 18 months within the three years prior to the date of claim.
CONDITIONS
Spine Condition
Ms Ye told the Tribunal that she has suffered severe neck and lower back pain for several years and that the pain has progressively increased particularly over the last 12 months. The neck pain is constant and is increases when she turns her head and is associated with a “cracking noise”. Her back pain is also constant, radiates to both her legs and prevents her from sitting for more than 10 minutes. The pain is not relieved by anything but she does intermittently take Panadol Osteo.
Ms Ye said that she does not need assistance with self-care but leaves all the household duties to her three children. She spends her time at home watching television, listening to the radio, walking around the garden and doing the exercises as instructed by her physiotherapist. She does not need assistance to get up out of a chair or need to use a walking stick. She is able is to use public transport for up to 30 to 40 minutes, attend medical appointments on her own and walk to the bank which is just less that kilometre from her home. She used to be able to drive her car but stopped doing this about one year ago because of increasing back pain.
Ms Ye agreed that she told the SSAT on 13 February 2015 that she was able to sit in a car as a passenger for 20 minutes although she had to change he position frequently, she can move her neck in either direction but must do so slowly and can drive to local shops and park the car.
An X-ray of the cervical spine performed on 19 September 2011 is reported as follows: “Mainly C5/6 disc space is narrow with posterior margin lipping into the canal and with prominent lipping of neurocentral joints limiting adjacent neural foramina. The C4/5 has a lesser degree of similar change”.
An MRI scan of the lumbar spine performed on 19 June 2013 is reported as follows: “Grade 1 spondylolisthesis at L5/S1 with bilateral pars defects at L5. There is moderate foraminal narrowing at this level with mild impingement of both L5 roots. No disc protrusion detected. The central canal is preserved”.
In his report of 6 June 2014 Dr Ang notes clinical features as “severe back pain with radiation to limbs R>L, cannot tolerate prolong sitting/standing/walking, difficulty bend over/lift weight” and impact on ability ty to function as decreased endurance and movement.
Dr Ang lists “neck pain” as a medical condition that is generally well managed and causes minimal or limited impact but provides no other details.
Dr Ang provided medical certificates dated 10 February 2015, 8 May 2015 and 19 June 2015, which are essentially the same, in which he states that Ms Ye has sever lumbar back pain and sciatica and “she finds it very difficult to walk >10 mins and she experienced related symptoms of dyspnoea, fatigue and palpitations. She needs rest after walking or standing for 10 mins and requires assistance from kneeling and squatting” and that “her lumbar back pain has moderate to severe functional impact on her ADLs”.
Dr Ang also notes the following:
“Her neck pain and Rt shoulder pain have resulted in her difficulties carrying weight, even carrying light weight (1 Liter milk) for long period could result in exacerbation of her chronic symptoms, not even mention of heavy weight. Also, she has reduced endurance in doing simple tasks such as reading, using computer, unscrewing soft drink bottle as these things all require bending her neck. This suggest moderate functional impact on her ADLs”
Consideration
On consideration of the evidence I am satisfied that during the claim period Ms Ye’s cervical and lumbar spine conditions were permanent for the purposes of the Impairment Determination so that a rating under the Impairment Tables can be applied.
The level of impairment suffered by Ms Ye during the claim period is not entirely clear particularly as Ms Ye told the Tribunal that her symptoms have become more severe in the 12 months since the end the claim period.
The corroborative evidence provided by Dr Ang I find to be problematic. His report of 6 June 2014 can best be described as incomplete and does not provide any meaningful assessment of the functional impact of the lumbar spine condition and also states that there is only minimal functional impact of the cervical spine condition.
The medical certificates provided by Dr Ang in 2015 is, in my view, present a confused account of Ms Ye’s claimed functional impairment in respect of her various medical conditions and the relevance to the claim period is unclear.
Notwithstanding the difficulties with the evidence I am satisfied that during the claim period a rating of 10 points under Impairment Table 4 can be applied.
Mental Health Condition
Ms Ye told the Tribunal that she had been suffering “depression” since 2013 when her GP, Dr Ang, prescribed antidepressant medication. Since then she has consulted a registered psychologist and a clinical psychologist for further treatment.
In his report of 6 June 2014 Dr Ang lists “depression” as condition causing significant functional impact and notes clinical features as “depressed mood, poor concentration, low self esteem, poor sleep” and describes impact on ability to function as reduced endurance and movement.
In a letter dated 11 December 2013 Ms Ng, registered psychologist, notes that Ms Ye had been referred for “management and treatment related to her symptoms of Anxiety and Depression” and has been seeing her for weekly psychotherapy sessions since 19 November 2013. Ms Ng indicated that Ms Ye’s symptoms were consistent with a Major Depressive Disorder.
The Tribunal has been provided with a letter signed by Ms Ng dated 10 June which appears to be an exact copy of the earlier letter and contains no new information.
In a letter dated 11 September 2014 Ms Chu, clinical psychologist, notes that Ms Ye “reported reductions in mood, concentration, energy and motivation due to unemployment and the disrupted sleep whilst no reductions in her sense of enjoyment, decision making ability and appetite”.
Ms Chu expresses the opinion that Ms Ye presents with “adjustment issues with depressive symptoms that seem to be related to her unemployment and poor sleep. She has some subclinical anxiety symptoms” and states that “she is likely to benefit from receiving Cognitive Behaviour Therapy” (CBT) to help her reduce her anxiety and manage her mood” She recommends a course of therapy that could be long term.
In a letter dated 20 November 2014 Ms Chu notes that since September 2014 she has seen Ms Ye for six sessions and states that Ms Le is likely to benefit from continuing CBT.
In a letter dated 11 June 2015 Ms Chu notes that she has “been seeing Ms Ye since August 2014 for the management of her Major Depressive Disorder”.
I note that a definitive diagnosis of Major Depressive Disorder had not been confirmed in Ms Chu’s earlier 2014 correspondence.
Consideration
The Introduction to Impairment Table 5 stipulates that the diagnosis of a mental health condition must be made by a psychiatrist or supported with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist,
The evidence before the Tribunal clearly shows that Ms Ye’s mental health condition was not diagnosed by a psychiatrist and she was not seen by a clinical psychologist, Ms Chu, until the end of the claim period. Ms Chu did not appear to make a definitive diagnosis at that time but recommended further treatment.
For present purposes, I accept that a diagnosis of a mental health condition was made during the claim period. However, in my view, the evidence clearly demonstrates that during the claim period the condition was not fully treated and not fully stabilised and, therefore, not a permanent condition for the purposes of the Impairment Determination so that a rating under the Impairment Tables cannot be applied.
Upper Limb Condition
Ms Ye told the Tribunal that she has had pain in her left shoulder since September 2011 and that the pain has been getting worse over time, but was unable to provide the Tribunal with a clear understanding as to the nature or severity of the pain. She said that she is unable to raise her left arm or turn it to her back.
Ms Ye is right handed and until recently had no impairment in her right arm and appears to have been able to manage most daily activities requiring the use of hands arms without difficulty. Recently she has developed an unexplained tremor in her right hand.
An X-ray of the left shoulder performed on 19 September 2011 is reported as showing no abnormalities. An ultrasound examination of the left shoulder performed on the 20 September 2011 is reported as follows: “There is a small partial thickness insertional tear at the supraspinatus anteriorly with some small calcifications as well. The rest of the rotator cuff is intact and there is no other abnormality”.
In a letter dated 9 May 2013 Dr Chan, rehabilitation physician, notes, inter alia, that Ms Ye complains of left shoulder pain. On examination he notes that “the left shoulder supraspinatus and subacromial space are tender” and records 20 – 25% reduction in active abduction and flexion of the shoulder. He records an impression of left shoulder rotator cuff tendonopathy but provides no other details, in particular, there is no treatment plan with respect to the shoulder respect and no assessment of functional impact.
In letters with reference to subsequent consultations about Ms Ye’s lumbar spine condition, dated 27 June 2013 and 29 November 2013, Dr Chan makes no reference to the left shoulder.
Consideration
The ultrasound examination of the left shoulder in 2011 reveals relatively minor abnormalities in the left rotator cuff and there is, in my view, no reasonable explanation for the claimed persistence of severe symptoms and impairment.
There have been no more recent radiological assessments of the left shoulder and there is no evidence of any recent management plan.
In my view, there is insufficient evidence to satisfy the Tribunal that during the claim period Ms Ye’s left shoulder condition was fully diagnosed, fully treated and stabilised and, therefore, not a permanent condition for the purposes of the Impairment Determination so that a rating under the Impairment Tables cannot be applied.
Lower Limb Condition
An Xray of the left foot performed on 14 March 2011 is reported as showing the following: “A minor flexion deformity involves the proximal interphalangeal joint of the left second toe. Accompanying moderate hallux valgus deformity of the big toe metatarsophalangeal joint and early lateral subluxation of the proximal phalanx in relation to the big toe metatarsal head and early joint space narrowing of the joint”.
In his Centrelink medical report of 6 June 2014 Dr Ang lists “severe DJD L second 2nd toe” as both a medical condition that has significant functional impact and as a medical condition generally well managed that caused minimal or limited impact but provides no other relevant details in respect of treatment or functional impact.
In my view, there is insufficient evidence to satisfy the Tribunal that during the claim period Ms Ye’s lower limb condition was fully diagnosed, fully treated and fully stabilised and, therefore, not a permanent condition for the purposes of the Impairment Determination so that a rating under the Impairment Tables cannot be applied.
Other Conditions
I accept that during the claim period the conditions of ‘non-insulin dependent diabetes mellitus’ and ‘hypertension’ were permanent for the purposes of the Impairment Determination but as there is no evidence of any impairment in respect of these conditions I am satisfied that the appropriate rating under the Impairment Tables is 0 points.
DECISION
For reasons set out above I am satisfied that during the claim period Ms Ye’s total rating under the Impairment Tables was 10 points so that she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ...............................[sgd].........................................
Associate
Dated 30 September 2015
Date(s) of hearing 2 September 2015 Applicant In person Solicitor for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security Benefits
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Disability Support Pension
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Impairment Rating
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Functional Impact
0
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